ing into execution those, otherwise granted, are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.2

§ 1239. But still a ground of controversy remains open, as to the true interpretation of the terms of the clause; and it has been contested with no small share of earnestness and vigour. What, then, is the true constitutional sense of the words "necessary and proper" in this clause? It has been insisted by the advocates of a rigid interpretation, that the word "necessary" is here used in its close and most intense meaning; so that it is equivalent to absolutely and indispensably necessary. It has been said, that the constitution allows only the means, which are necessary; not those, which are merely convenient for effecting the enumerated powers. If such a latitude of construction be given to this phrase, as to give any non-enumerated power, it will go far to give every one; for there is no one, which ingenuity might not

1 Some few statesmen have contended, that the clause gave farther powers, than mere incidental powers. But their reasoning does not seem very clear or satisfactory. See Governor Randolph's Remarks, 2 Elliot's Debates, 342; Mr. Gerry's Speech in Febuary, 1791, 4 Elliot's Debates, 225, 227. These Speeches are, however, valuable for some striking views, which they present, of the propriety of a liberal construction of the words.

2 See Virginia Report and Resolutions, Jan., 1800, p. 33, 34; 1 Tuck. Black. Comm. App. 287, 288; President Monroe's Exposition and Message, 4th of May, 1822, p. 47; 5 Marshall's Wash. App. note 3; 1 Hamilton's Works, 117, 121.

torture into a convenience in some way or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase. Therefore it is, that the constitution has restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory. A little difference in the degree of convenience cannot constitute the necessity, which the constitution refers to.1

§ 1240. The effect of this mode of interpretation is to exclude all choice of means; or, at most, to leave to congress in each case those only, which are most direct and simple. If, indeed, such implied powers, and such only, as can be shown to be indispensably necessary, are within the purview of the clause, there will be no end to difficulties, and the express powers must practically become a mere nullity. It will be found, that the operations of the government, upon any of its powers, will rarely admit of a rigid demonstration of the necessity (in this strict sense) of the particular means. In most cases, various systems or means may be resorted to, to attain the same end; and yet, with respect to each, it may be argued, that it is not constitutional, because it is not indispensable; and the end may be obtained by other means. The consequence of such reasoning would be, that, as no means could be shown to be constitutional, none could be adopted. For instance, con

1 4 Jefferson's Corresp. 525, 526; 4 Elliot's Deb. 216, 217, 224, 225, 267; M'Culloch v. Maryland, 4 Wheat. R. 412, 413.

2 Hamilton on Eank, 1 Hamilton's Works, 119; 5 Marshall's Wash. App. note 3, p. 9; Mr. Madison, 4 Elliot's Deb. 223.

3 United States v. Fisher, 2 Cranch, 358; 1 Peters's Cond. R. 421; Hamilton on Bank, 1 Hamilton's Works, 119; 5 Marshall's Wash. note 3, p. 9, 10; Mr. Madison, 4 Elliot's Deb. 223.

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gress possess the power to make war, and to raise armies, and incidentally to erect fortifications, and purchase cannon and ammunition, and other munitions of war. But war may be carried on without fortifications, cannon, and ammunition. No particular kind of arms can be shown to be absolutely necessary; because various sorts of arms of different convenience, power, and utility are, or may be resorted to by different nations. What then becomes of the power? Congress has power to borrow money, and to provide for the payment of the public debt; yet no particular method is indispensable to these ends. They may be attained by various means. Congress has power to provide a navy; but no particular size, or form, or equipment of ships is indispensable. The means of providing a naval establishment are very various; and the applications of them admit of infinite shades of opinion, as to their convenience, utility, and necessity. What then is to be done? Are the powers to remain dormant? Would it not be absurd to say, that congress did not possess the choice of means under such circumstances, and ought not to be empowered to select, and use any means, which are in fact conducive to the exercise of the powers granted by the constitution? Take another example; congress has, doubtless, the authority, under the power to regulate commerce, to erect lighthouses, beacons, buoys, and public piers, and authorize the employment of pilots. But it cannot be affirmed, 1 that the exercise of these powers is in a strict sense necessary; or that the power to regulate commerce would be nugatory without establishments of this na

1 United States v. Fisher, 2 Cranch. R. 358; 1 Peters's Condens. R.

2 See 4 Elliot's Debates, 265, 280.

ture.1 In truth, no particular regulation of commerce can ever be shown to be exclusively and indispensably necessary; and thus we should be driven to admit, that all regulations are within the scope of the power, or that none are. If there be any general principle, which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is, that every power, vested in a government, is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the end of such power; unless they are excepted in the constitution, or are immoral, or are contrary to the essential objects of political society."

§ 1241. There is another difficulty in the strict construction above alluded to, that it makes the constitutional authority depend upon casual and temporary circumstances, which may produce a necessity to-day, and change it to-morrow. This alone shows the fallacy of the reasoning. The expediency of exercising a particular power at a particular time must, indeed, depend on circumstances; but the constitutional right of exercising it must be uniform and invariable; the same to-day as to-morrow.

§ 1242. Neither can the degree, in which a measure is necessary, ever be a test of the legal right to adopt it. That must be a matter of opinion, (upon which different men, and different bodies may form opposite judgments,) and can only be a test of expediency.

1 Hamilton on Bank, 1 Hamilton's Works, 120.

2 Hamilton on Bank, 1 Hamilton's Works, 112.

3 Hamilton on Bank, 1 Hamilton's Works, 117; 5 Marshall's Wash. App. note 3, p. 8.

The relation between the measure and the end, between the nature of the means employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality; and not the greater or less of necessity or expediency.1 If the legislature possesses a right of choice as to the means, who can limit that choice? Who is appointed an umpire, or arbiter in cases, where a discretion is confided to a government? The very idea of such a controlling authority in the exercise of its powers is a virtual denial of the supremacy of the government in regard to its powers. It repeals the supremacy of the national government, proclaimed in the constitution.

§ 1243. It is equally certain, that neither the grammatical, nor the popular sense of the word, "necessary," requires any such construction. According to both, "necessary" often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government, or a person to do this or that thing, when nothing more is intended or understood, than that the interest of the government or person requires, or will be promoted by the doing of this or that thing. Every one's mind will at once suggest to him many illustrations of the use of the word in this sense. To employ the means, necessary to an end, is generally understood, as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. § 1244. Such is the character of human language,

2

1 Hamilton on Bank, 1 Hamilton's Works, 119, 120; 5 Marshall's Wash. App. note 3, p. 9, 10; M'Culloch v. Maryland, 4 Wheat. R. 423. 2 Hamilton on Bank, 1 Hamilton's Works, 118; 5 Marshall's Wash. App. note 3, p. 9.